Yesterday, thirteen judges of the Fourth Circuit sitting en banc heard argument in IRAP v. Trump. Acting Solicitor General Jeffrey Wall handled with aplomb an hour of blistering questions from about seven or eight judges on the red-hot panel. Omar Jadwat, arguing for the ACLU, also faced an hour of questions, though only two or three judges seemed to challenge his position.

This post will highlight five of the government’s leading arguments: (1) that the court should apply a “presumption of regularity” to this case; (2) that because of Trump’s oath of office, courts should discount prior statements made on the campaign trail; (3) that when Trump said “we all know what that means,” he was not referring to the Muslim ban; (4) that Lemonand McCreary Countyshould be cabined as “domestic” Establishment Clause cases; and (5) the impact of a ruling against this President would be to bind future Presidents.

By far, this was the strongest case yet for the U.S. government, and it offers a preview of the sorts of arguments that a majority of the Justices will likely find far more compelling than the majority of the Fourth Circuit.

“Presumption of Regularity”

The defining theme in the government’s presentation was urging the court to apply a “presumption of regularity.” As the government noted in its opening brief:

Under the Constitution’s structure and its separation of powers, courts evaluating a presidential policy directive should not second-guess the President’s stated purpose by looking beyond the policy’s text and operation. The “presumption of regularity” that attaches to all federal officials’ actions, United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926), applies with the utmost force to the President himself.

By my count, Wall repeated this phrase at least four times. In this clip, Judge Floyd asks “if there is anything other than willful blindness that would prevent us from getting behind those statements.” Wall responds, “Respect for the head of a coordinate branch, and a presumption that officials act legally, which is to say, the ‘presumption of regularity.’” Chief Judge Gregory interjects, and asks about whether that presumption prevents courts from assessing the constitutionality of actions. Wall replies that it does not, but that the “only thing” plaintiffs have is to “reach back” to “what was in the President’s head.” He admits there are “different ways to read those [political] statements,” but insists that “respect for a coordinate branch and a ‘presumption of regularity’ require reading them in a way that is not most hostile to the President, but would render the actions lawful.”

Judge Wynn says that, far from regularity, with respect to President Trump “we are in uncharted territories.” In response, Wall counters that the district court’s opinion was in fact “unprecedented.”

How should courts handle the “uncharted territories” of the Trump administration? Specifically, should courts afford Trump less deference because of his outlandish behavior? Recently, law professor Dawn Johnsen provided a guide:

Trump’s extraordinary—indeed, unprecedented— behavior more generally means that he is not due the deference traditionally afforded presidents. I feel confident that we all are hearing and thinking a great deal about Trump’s attacks on the courts and individual judges and his numerous false statements, including many about national security that reflect and foster prejudice and hate.

It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?

Johnsen explains why the “presumption of regularity” ought not to apply to Trump:

Courts attend to reality and context, and they can and should adapt their screens of deference when circumstances so indicate. Again, the deference courts traditionally afford presidents is premised in part on the plausibility of some basic assumptions that typically go without saying, but that increasingly are implausible in the case of President Trump: that the president’s decisions reflect a respect for the rule of law, are informed by relevant advisors and information, are based in fact, and are in service of the public interest. Through his own actions across issues and in ways without precedent, Trump has eroded the plausibility of belief in even minimal versions of these traditional safeguards against executive action based on bad motive and arbitrary factors. To the contrary, Trump has evidenced a profound disrespect for the judiciary and the rule of law, has repeatedly told us that animus and improper motive infect at least some of his decisions, and often has misled or misstated facts to the public.

Examples are legion and widely known. Just a few: Trump’s false claim that President Obama used our national security apparatus to spy on him illegally (52 percent of Republicans believe that “the Obama administration intentionally spied on Trump and members of his campaign during the 2016 election campaign.”). Trump’s statements attacking the courts and individual judges, including suggesting that judges should be blamed for future violence and putting our country in peril. Trump’s numerous extreme, in some cases blatantly false, anti-Muslim statements. Trump’s irresponsible failure to take seriously financial conflicts of interests. Russian interference in our democracy.

I appreciate Johnsen’s candor, as she admits what the ACLU and other Attorneys General tap-dance around. She is openly asking courts to consider a litany of political grievances to determine that Trump is not entitled to the usual deference other Presidents have been afforded. Remarkably, Johnsen offered this counsel to a bevy of district and circuit judges of Indiana, Illinois, and Wisconsin during the Seventh Circuit Judicial Conference. This was an open invitation for the jurists in the room to join the resistance.

Even on these terms, I take exception to Johnsen’s rubric. As I discussed in my recent post, All the President’s Lawyers, Trump’s Twitter bark has no bite:

This pattern—where the President blows smoke up Twitter but his lawyers nudge him to act normally—has repeated itself over and over again. Why is this pattern relevant? Because all of the court decisions I mentioned above were premised on the President’s threatened, uninformed bluster, rather than the executive branch’s actual, informed actions. I admit it is somewhat disjointing to separate the President from the executive branch, but for better or (mostly) worse, such is the first four months of the Trump era. The bark is much worse than the bite. Indeed, the bark has no bite. It is all hot air. Rather than treating Trump’s tweets as existential threats to the rule of law, take them for what they are: uninformed rantings with zero legal effect. I’m sure lawyers within the administration would prefer the President stayed quiet, but that is not who he is. And fortunately, for the rule of law, what happens on Twitter stays on Twitter. Recognizing the fecklessness of Trump’s barbs should give courts pause before elevating his social media over actual policy statements.

In any event, the judiciary did not need Johnsen’s engraved invitation to join the resistance. The sorts of injunctions that have been entered by judges in Washington, Hawaii, and Maryland are premised on analyses never before seen in the Federal Reporter. These jurists figured it out without the nudging of the professoriate.

This sort of analysis will suffice for the inferior courts, but will have a short shelf life. I strongly doubt the Supreme Court will wade into such muddy waters. Can you imagine five Justices assessing the necessary level of “Russian interference in our democracy” before jettisoning the “presumption of regularity” as applied to President Trump’s executive actions?

“The Oath”

As a means to discount statements made by Trump prior to the inauguration, the Acting Solicitor General puts great weight in the oath of office. In contrast to Ben Wittes and Quinta Jurecic’s argument that Trump cannot possibly comply with his oath of office (a point I alluded to last year), the government contends that the oath transformed Trump—a constitutional baptism if you will—and thus earlier campaign-trail statements are off limits.

Consider this excerpt from the government’s brief:

Virtually all of the President’s statements on which the district court relied were made before he assumed office— before he took the prescribed oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1, cl. 8. Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution necessarily reposes in the Office of the President. Virtually all of the statements also preceded the President’s formation of a new Administration, including Cabinet-level officials who recommended adopting the Order.

In this clip, the Solicitor General explains that since various political statements were made on the campaign trail, “we had some pretty constitutionally significant events here. The President was elected. He took an oath to uphold the Constitution. He formed a government. He consulted with his administration.” Judge Motz interjects that “that doesn’t give him the right to violate the Establishment Clause.” Wall replies, these events “should color the way we reach back at and look at previous statements before he was an elected official, before he faced the demands of government, before he consulted with an administration, and he took an oath that allowed him to occupy the nation’s highest office.” After this point, Wall returns to his earlier argument, and explained “out of respect, and the ‘presumption of regularity,’” we “don’t give the President the least charitable interpretation of what he said, we give it the most reasonable interpretation in order to render the executive order lawful.”

Wall closes with the most important point: the order, he said, “shouldn’t drift in and out of constitutionality based on what we think was in the head of the President that issued it.” Again, this drove home the theme that Trump should not be treated any differently than other Presidents. Indeed, during appellees’ time at the podium, the ACLU had to concede that had a President Clinton the same exact order, it would be constitutional. The legality of the order should not fluctuate based on “the President that issued it.”

“We all know what that means”

Because a few judges seemed persuaded by the oath argument, the colloquies focus at great length on six words uttered by the President when he signed the initial executive order on January 27, 2017: “We all know what that means.” Brief after brief has quoted this sentence as the silver bullet to prove that Trump was in fact enacting his secret Muslim ban. SG Wall conceded that this was the “best statement” in the record to support the plaintiffs’ case. Recall that President Clinton's presidency nearly unraveled over the meaning of “is.” Now, could President Trump’s travel ban hinge on the meaning of “that”?

Before argument in the Fourth Circuit, I had never bothered to watch the signing ceremony in its entirety. I simply presumed the attorneys who were citing it in their briefs provided the full context. I was woefully mistaken. For lawyers who live in transcripts, context matters. Watch the entire thirteen-minute clip, and reassess your reading of "that."

Here’s the set-up. President Trump and Vice President Pence arrive at the Hall of Heroes in the Pentagon, in a room full of high-ranking DOD officials.

First, Pence issues the oath of office to Mattis, wherein the former General pledges to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Mattis thanks the President and Vice President, and says that Trump has “made clear his strong commitment to national defense.”

Starting at the 5:00 minute mark, Trump takes the mic, and praises Mattis and the military.

At 7:34, Trump introduces the first of two executive orders he will soon sign:

We are in awe of their valor— tremendous valor, and we pledge our dedication to every single family serving our country and our flag. That is why today I am signing two executive actions to ensure the sacrifices of our military are supported by the actions of our government, and they will always be supported by the actions of our government. Believe me. First I'm signing an executive action to begin a great rebuilding of the Armed Services of the United States, developing a plan for new planes, new ships, new resources, and new tools for our men and women in uniform. And I'm very proud to be doing that. As we prepare our budget request or Congress —and I think Congress is going to be very happy to see it. Our military strength will be questioned by no one, but neither will our dedication to peace. We do want peace.

I’ve emphasized the word that to illustrate how Trump uses that word. Here, that refers to building the military to protect the homeland.

At 8:35, he introduces the second executive order, which is at issue in the litigation:

Secondly, I'm establishing new vetting measures to keep radical Islamic terrorists out of the United States of America. We don't want them here. We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas. We only want to admit those into our country who will support our country and love deeply our people. We will never forget the lessons of 9/11 nor the heroes who lost at the Pentagon. They were the best of us. We will honor them not only with our words, but with our actions, and that's what we're doing today. I am privileged to be here with you and I promise that our administration will always have your back. We will always be with you. And I just want to thank you very much.

What is the purpose of his second executive order? “To keep radical Islamic terrorists out of the United States of America.” That is what that refers to.

After thanking General Mattis again, at 10:50, Trump sits down at the desk to sign the first executive order:

OK. So, this is the rebuilding of the United States armed forces. That's a big one. [Inaudible, though I think he pointed to someone in the audience, and said “It is so nice to see you.”] That's a big statement, isn't it, the rebuilding. Doesn't that sound good? It's been a while. Too long. Secretary Mattis.

Once again, I emphasized the word "that." And again, he is referring back to the title of the executive order, not some super-secret purpose.

A few moments later, at 11:40, he picks up the second executive order, and squints at it. He reads the title: “This is the ‘Protection of the nation from foreign terrorist entry into the United States.’” For those snoots who seek to hold the President to grammatical certainty, he didn’t even read the title correctly. It is, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Looking up from the order, he says, “We all know what that means.” He repeats the title again. “Protection of the nation from foreign terrorist entry into the United States.” He adds, “That’s big stuff.” He then signs the order.

Once again, he uses the word that to refer to the title of the order. For the first order, he said “that’s a big statement.” For the second order, he said “that’s big stuff.”

Moments later, the ceremony concludes. Trump says, “I want to thank everyone. Many great heroes, many great warriors. We have tremendous respect for you all.” The room bursts into a round of applause, as the President shakes hands with the new Secretary of Defense.

It is painfully obvious what Trump meant by "that." Speaking in the Pentagon, after swearing in his Secretary of Defense, with the Vice President standing over his shoulder, the President was speaking about “keep[ing] radical Islamic terrorists out of the United States of America.” The premise that the President’s use of “that,” was a wink and a nod to bigotry is an illustration of motivated reasoning.

To make this point even more explicitly, the Secretary of Defense had just taken an oath to support and defend the Constitution, as did the Vice President, as did every officer in the room. It was broadcasted on live television. Does anyone plausibly think that anyone in that room could have conceivably thought the President was secretly signaling an outright ban on Muslims? It absolutely strains credulity. Under McCreary County (which I do not think even applies), this remark passes the “objective observer” test with flying colors. An objective observer could not possibly look at this ceremony as a whole and, on the basis of the word that, connect the initial executive order to Trump’s campaign promise in 2015. The proverbial missing link is simply missing.

Perhaps Trump, secretly, harbored this animus, and used a turn of phrase that no one else recognized. If that is so, then Justice Souter’s analysis about “secret motive” in McCreary is even more on point:

Nor is there any indication that the enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. In the past, the test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the "`objective observer, acquainted with the text, legislative history, and implementation of the statute,'" Santa Fe, 530 U. S., at 308 (quoting Wallace, supra, at 76 (O’Connor, J., concurring in judgment)), cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.

Such an action could still fail the Lemon test if it has “the illegitimate effect of advancing religion,” but here, the purpose prong—the strongest part of the plaintiffs’ case—is off the table. They have to rely on its effect. As the Solicitor General aptly noted during argument, any official action taken towards one of those six countries would have a disproportionate effect on Muslims. For example, designating Syria or Iran a state sponsor or terror deprived the country, and thereby its residents—an overwhelming majority of which are Muslims—of a host of benefits. The plaintiffs need the purpose prong to prevail, hence the surplusage of amicus briefs imploring Justice Kennedy to find an improper animus behind the action.

In truth, this episode is little more than a Rorschach Test for the resistance. The signing ceremony was not an elegy for Pepe the frog. The commander in chief is standing in front of a room of America’s finest, pledges to help them protect the homeland, and signs the order. Only the most hostile, jaundiced viewer of such an uplifting ceremony could possibly think President Trump’s use of “that” was some sort of bigoted dog whistle to the alt right. Perhaps this argument passes for acceptable fare on MSNBC, but judges should, as Justice Scalia suggested, hide their head in a bag if their opinion hangs on this gossamer thread.

If you think my take is too sharp, consider the explanation of the Acting Solicitor General, who offered this measured response at 43:20 of the argument:

When he looked at the title of the order, which is projecting us from foreign terrorist countries, and said ‘we all know what this [sic] means,’ the reasonable reading is not the one the plaintiffs give to it, it is the President was talking about countries and groups that may intend to do us harm. And certainly in the face of ambiguity over what the Commander in Chief and head of the executive branch meant by an offhand six-word statement, this court ought to I think take that statement not at its least reasonable, not at its least permissible, but in a way that it was in accord with what the president and advisers had been talking about for months, which was terrorism.

That is, a pause on immigration from certain terror-prone regions. Not a Muslim ban.

“Domestic Establishment Clause”

In March, I wrote at some length that courts should hesitate before applying run-of-the-mill Establishment Clause cases like Lemon and McCreary County to the foreign policy context. Particularly in the context of immigration law, which routinely classifies aliens based on religious factors, there is reason to doubt that these precedents are even applicable. SG Wall advanced this point at least three times during argument labelling those cases “domestic Establishment Clause” precedents. The brief provides, citing dissental from the Ninth Circuit, that these cases are simply inapplicable:

Third, the Establishment Clause precedents that the district court applied in disregard of [Kleindienst v.] Mandel—addressing domestic questions involving local religious displays, school subsidies, and the like—have no proper application to foreign- policy, national-security, and immigration judgments of the President. The district court offered no justification for exporting McCreary County v. ACLU, 545 U.S. 844 (2005), and Lemon v. Kurtzman, 403 U.S. 602 (1971), to this context. The “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.” Washington Bybee Dissent 8 n.6. Indeed, the court’s reasoning would appear to extend to “every foreign policy decision made by the political branches, including our dealings with various theocracies across the globe.” Washington Kozinski Dissent 3 n.2. This Court should reject such extensive “intrusion of the judicial power into foreign affairs” committed to the political branches. Id.

The government does not go quite as far as to conclude that Lemon has no application beyond the border, as I do. It takes the safer, more moderate position that Mandel generally applies, unless the bad faith exception from Justice Kennedy’s Din concurrence is triggered. (For reasons I discuss here, Din is not triggered by the travel ban).

The domesticization of the Establishment Clause is a particularly compelling argument that so far only dissents have given attention to. However, when this matter arrives at the Supreme Court, I fully expect several Justices to be attuned to this issue. If the Establishment Clause applies with full force to foreign policy decision, many other aspects of immigration law—such as special visas for “the vocation of a minister ministers”—are now constitutionally suspect. The Justices will make more than a fleeting effort to fit this case into the broader doctrine of federal law.

“Constitutional Moment”

SG Wall’s prepared closing statement is a preview of the sort of argument that will be made to the Supreme Court:

The last thing, if I could say this, the order before this court has been the subject of a heated and passionate political debate, but the precedent set by this case for this court's role in reviewing the president's power at the borders will long transcend this debate and this order and this constitutional moment. In cases like this one, which is such intense feelings on both debate and this order and this constitutional moment. Sides, we would respectfully submit it is all the more important to apply the usual rules and interpretation and injunctive relief. We respectfully cement that that debate should be where it belongs in the political arena and this injunction should be vacated. Thank you.

Here, Dawn Johnsen’s conclusion is especially relevant:

And in order not to jeopardize executive power more generally and for other presidents in contexts where deference will remain appropriate and important, courts should take care not to downplay or sanitize facts peculiar to Trump that specially shift burdens and diminish the deference due.

The resistance seeks to gerrymander whatever precedents it sets here to constrain Trump, while leaving President Elizabeth Warren unfettered. That’s not how constitutional law works.

It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.